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High Court Of Orissa
P. C. MISRA, G. B. PATTANAIK
NARAN BEHERA - Appellant
Versus
MOHAN JETHI - Respondent
First Appeal 143 Of 1972
Decided On : 06/20/1984
ADVERSE POSSESSION - LIMITATION ACT, 1963 - ART. 65 - SUIT FOR POSSESSION OF IMMOVABLE PROPERTY - TITLE BASED - PLAINTIFF NEED NOT PROVE POSSESSION WITHIN TWELVE YEARS OF SUIT - ADVERSE POSSESSION MUST BE PROVED BY DEFENDANT - INGREDIENTS OF ADVERSE POSSESSION - CONTINUOUS, HOSTILE, OPEN, TO THE KNOWLEDGE OF THE TRUE OWNER.
Fact of the Case:
Plaintiffs filed a suit for declaration of right, title, and possession in respect of certain properties and recovery of possession of a house. The defendants claimed adverse possession. The trial court dismissed the suit, holding that the plaintiffs had not been in possession of any of the suit properties after 1951 and within twelve years before the filing of the suit and that the defendants had perfected their title by way of adverse possession.
Finding of the Court:
The High Court held that the trial court erred in holding that the plaintiffs' suit would fail if they did not establish their possession within twelve years from the date of the suit. The court held that under Art. 65 of the Limitation Act, 1963, in suits for possession based on title, the plaintiff need only prove his title and need not show that he was in possession within twelve years of the suit.
Issues: 1. Whether the plaintiffs were required to prove possession within twelve years from the date of the suit to succeed in their claim for possession of the suit properties? 2. Whether the defendants had established their case of adverse possession with respect to the suit properties?
Ratio Decidendi: 1. The court held that under Art. 65 of the Limitation Act, 1963, in suits for possession based on title, the plaintiff need only prove his title and need not show that he was in possession within twelve years of the suit. The court held that the trial court erred in holding that the plaintiffs' suit would fail if they did not establish their possession within twelve years from the date of the suit. 2. The court held that the defendants had failed to establish their case of adverse possession with respect to any of the properties included in the suit excepting the house standing on plot No. 2098. The court held that the defendants had been able to establish their title by way of adverse possession with respect to the house standing on plot No. 2098.
Final Decision: The High Court allowed the appeal in part, confirming the trial court's judgment and decree with respect to the house on Plot No. 2098 and declaring the defendants' title by adverse possession with respect to the same. The High Court set aside the trial court's judgment and decree with respect to all other properties in suit and declared the plaintiffs' title with respect to those properties and confirmed their possession.
G. B. PATNAIK, J.
( 1 ) PLAINTIFFS are appellants against the judgment and decree of the 4th Additional Subordinate Judge, Cuttack, in Title Suit No. 67 of 1970. Plaintiffs' suit is one for declaration of right title and possession in respect of lots Nos. 1 and 2 of Sch.-A properties and recovery of possession with respect to the house standing on plot No. 2098 included in Lot No. 2 of the Schedule. The total extent of the suit land is Ac. 0. 282.
( 2 ) ACCORDING to the plaint case, one Ananda had two sons - Naran and Alekha. Alekh's son is Ratha (plaintiff No. 2) and Alekh's widow is Saria (defendant No. 6 ). Naran is plaintiff No. 1 and his son Srikanta is plaintiff No. 3. Naran's first wife is Haramani (defendant No. 5 ). The further case of the plaintiffs is that after death of Alekh Naran married Alekh's widow Saria Haramani's father is defendant No. 1 and defendants 2 and 3 are sons and defendant No. 4 is the wife of defendant No. 1. Admittedly, Sch. A properties belong to defendant No. 1 who had mortgaged Ac. 1. 021 of land to Anand on 7-3-1933 under the mortgage deed (Ext. 2 ). Thereafter, defendant No. 1 in order to pay the mortgage dues sold Ac. 0. 808 of land out of the mortgaged property to said Ananda for a consideration of Rs 300/- under the sale deed dt. 21-9-1934 (Ext. 3 ). Ananda died in the year 1939 and Alekh died in the year 1944. According to the plaint case, after Anand's death, plaintiffs are in exclusive possession of the land which Anand had purchased under Ext. 3. One China Jaguia Raju had levied an execution case bearing Execution Case No. 245 of 1934 for satisfaction of the decree against defendant No. 1 and put the entire properties under Sch. A. but the properties were released from execution on an objection being filed by plaintiff No. 1 and Alekh under O. 21, R. 58 of the Code of Civil Procedure bearing Claim Case No. 50 of 1940. 2a. After Anand's death, defendant No. 1 filed Title Suit No. 84 of 1942 in the Court of the Munsif, Second Court, Cuttack, for a declaration that Ext 3, the sale deed, was benami and for declaration of his title and possession. This suit was dismissed under Ext. 6. Against the said judgment. Title Appeal No. 161 of 1943 had been filed which was also dismissed under Ext. 7. Father having lost the suit, sons (defendants 2 and 3) fought a second round of litigation by filing a suit for a declaration that the sale deed (Ext. 3) was invalid as there was no legal necessity for the sale in question. This suit was numbered as Title Suit No. 304 of 1944 which was dismissed under Ext. 9 and an appeal against the same was also dismissed in Title Appeal No. 359 of 1945, as would appear from the certified copy of the decree in the said appeal (Ext. 12 ). A third round of litigation was initiated with respect to the self-same properties by the wife of defendant No. 1, namely defendant No. 4, in T. S. No. 218 of 1948 for a declaration that the, suit properties were her self-acquired properties and therefore, defendant No. 1 had no authority to execute the sale deed on 21-9-1934. This suit was dismissed for default on 27-4-1949 (Ext. 10 ). An application for restoration was filed in Misc. Case No. 61 of 1949 which was dismissed on contest by order dt. 25-8-1949 (Ext. 11 ). Against the said order of dismissal the matter was carried in Misc. Appeal No. 130 of 1949 which was dismissed on 23-12-1950 (Ext. 13 ). Civil Revision No. 75 of 1951 was carried to the High Court, but the same was also dismissed on 13-7-1951 (Ext. 14 ).
( 3 ) ON 25-4-1960, some of the lands purchased by the plaintiffs and some of their ancestral lands were acquired and compensation in respect thereof was received by the plaintiff's in Land Acquisition Case No. 2 of 1957-58 (Ext. 15 ). Another Land Acquisition Case No. 207 of 1962 in respect of portions of land purchased by the plaintiffs under Ext. 3 were acquired and defendant No. 1 being the recorded owner was noticed. Defendant No. 1 contested and claimed com
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